from the for-the-lack-of-a-warrant,-the-drug-bust-was-lost dept

Sixteen kilos of methamphetamine the Border Patrol found in an SUV was struck from the record by a federal judge because the agents didn't get the driver's consent to X-ray the vehicle.

The CBP had two suspects exactly where it wanted them: detained by agents at a checkpoint. And the longer they were detained, the more nervous they got. Despite a search of the interior turning up nothing and the drug-sniffing dogs failing to alert, the CBP officers were pretty sure they had just captured two smugglers. So, the agents routed the vehicle through their backscatter X-ray scanner, skipping a step in the process.

Agent Buchanan testified that he did not rely on probable cause for the backscatter search, but rather on consent to search given by Defendants. He testified, “we always ask for consent for the backscatter . . . unless we’ve already found something in the vehicle.” He testified that he typically has another agent get consent to search the vehicle with the backscatter. Agent Buchanan was unable to identify the agent he asked to get consent from the Defendants and was unable to confirm that such consent was requested.

So, Buchanan was unable to come up with any evidence or probable cause, but decided to perform the backscatter anyway, despite his doing so being completely contradicted by his portrayal of the CBP's standard m.o. This wasn't the only contradictory statement in the CBP's testimony.

Agent Valdez, who remained in the secondary waiting area with the Defendants, testified that he was present when Defendants gave consent to the backscatter search. However, he was unable to identify the agent who requested consent, how the request was phrased, and how the Defendants replied.

Valdez, despite being "present," couldn't actually say whether the defendants had given consent (or who to), but went ahead and told the court that the two men had consented.

The backscatter device -- an additional search that required consent or a warrant -- uncovered 14 wrapped packages of meth, 16 kilograms in all. From that Fourth Amendment-skirting search, the CBP compiled its criminal complaint. Now, all of that narrative is nearly useless, thanks to these officers' actions.

The court, on its way to dismissing as evidence the 16 kilos of meth obtained that day, points out the government's contradictory statements, as well as its inability to find anyone to corroborate the multiple claims that permission for the search had been granted.

Defendants argue that Border Patrol agents did not request their consent to search the vehicle with a backscatter. Agent Buchanan testified that he asked another Border Patrol agent to obtain that consent, but he was unable to identify the agent and was unable to confirm that the agent requested consent. Although Agent Valdez testified that he was present when Defendants gave consent for the backscatter search, he was unable to recall which agent requested consent and what was said by the agent and the Defendants. More importantly, the Government failed to identify and to offer the testimony of the agent who purportedly sought and obtained the consent.

And away goes 16 kilos of evidence, along with the bust itself, most likely. Kind of hard to prove the defendants were smuggling drugs when you can't introduce the smuggled drugs in court. Everyone at this particular CBP checkpoint apparently felt someone else would handle the consent issue. And even if the agents had been rebuffed, it's not as though the detainees were free to go. A warrant could have been acquired, most likely with minimal effort.

This isn't a huge bust nor would it have put a significant dent in a drug lord's operation. The CBP only had a couple of guys who had muled themselves out for a few hundred dollars. That, in and of itself, is just one of the problems with this nation's drug war. Thousands of tiny arrests like these happen every day and the "problem" isn't anywhere closer to being "solved."

The other thing this incident is symptomatic of is our nation's law enforcement agencies' extremely casual relationship with the Fourth Amendment. Time after time, we see the government (national and local) doing everything it can to avoid obtaining warrants -- whether it's their tendency to ask dogs for "permission" to perform warrantless searches or officers themselves using everything from imperceptible whiffs of drug odors to declaring every sign of nervousness as tantamount to a full confession. "Probable cause" is a low bar, but law enforcement agencies seem willing to sidestep it with alarming regularity. The CBP had a car full of drugs and two suspects nailed, but it showed that its "respect" for the Fourth Amendment was just a formality. Now, it has nothing more than two men suspected of smuggling the same drugs that can't be used against them in a court of law.

from the incredible dept

The list of incredible screwups concerning the investigation, raid and prosecution of Kim Dotcom in New Zealand is fairly incredible. At nearly every step of the way, we find out more and more about just how monumentally questionable the whole thing was. Frankly, I have no idea if what Dotcom did with Megaupload broke the law, but the indictment against him was filled with really questionable claims, the GCSB (local equivalent of the NSA) illegally spied on Dotcom and then deleted the evidence, the police sought to suppress images of the raid itself, and evidence was mishandled. Oh, and it was eventually revealed that customs officials agreed to share info on Dotcom with the FBI in the US to "buy... brownie points" with the FBI.

And, now a former high-ranking New Zealand Customs lawyer has said that he quit his job after he was ordered to "bury" information that made the New Zealand government look bad. Specifically, this is about that last point above -- the letter concerning the brownie points. Apparently, the New Zealand government didn't want that email to get out, despite it being required to be released under a freedom of information request (in New Zealand it's the Official Information Act). Curtis Gregorash, a lawyer in the Customs department was told directly not to release any such documents:

"Mr Taylor directed me to withhold all information and pass the same direction on to my team."

He said he was subjected to an internal investigation after releasing information about Dotcom sought by the NZ Herald through the Official Information Act. The information released saw Customs staff discuss earning "brownie points" by passing on Dotcom information to the FBI.

"Simpson Grierson [Dotcom's lawyers] had made several Privacy Act requests of the Government, some of which flowed through Customs, and decisions were made from ministerial level with Maurice Williamson directing Customs, 'Don't you dare release anything - nothing at all.'"

Gregorash apparently disobeyed these orders and released the "brownie points" letter -- as required by law -- and then faced an internal investigation, leading to him resigning in protest.

The "brownie points" OIA release to the Herald was the tipping point. "I got dragged over the coals for it. There was an investigation into me. I was cleared. I resigned after that."

He also seems to indicate that other documents that should have been released were withheld as well:

"All sorts of jokes and laughs and cut-downs that were being made by officials to each other were being withheld for [what he considered to be] no reason."

Gregorash had held onto the story for a while, but decided that it needed to be told.

Combined with everything else about this investigation and prosecution, it again makes you wonder what people were thinking. It still really feels like the DOJ and New Zealand officials all simply believed Hollywood's fanciful stories about Dotcom being "Dr. Evil" -- a cartoonish villain so bad that official and legal processes could be thrown out the window just to get him at any cost. Once again, it suggests that Hollywood and the DOJ officials who support it would be much better off actually taking the time to understand the nuances of the copyright debate, rather than their crude "piracy bad" level of understanding that they seem to have of it.

from the disappointing dept

Back in September, we wrote about the horrific and depressing story from On the Media about how one of its producers, Sarah Abdurrahman (a US citizen) along with her family and friends (all US citizens) were detained at the Canadian US border. The story involved all of them being detained under horrible conditions, with no one explaining anything to them. Their electronic devices were taken and searched. Some of them were physically searched multiple times. Perhaps the most horrific was that one guy was detained for longer while his family was told they could leave. When the guy's wife asked where her husband was, she was told that "an agency" was coming to "pick him up," implying that it was some sort of federal agency. It turned out that the guy had an unpaid ticket from seven years ago for a crooked license plate, and the Michigan State Police were called.

This past week, OTM spent its entire show looking at Homeland Security's secrecy at the border, kicking it off with replaying the original story by Abdurrahman. When I realized they were doing a full hour on the issue, I immediately figured that it would finally include some sort of explanation or some sort of response from DHS. But here's the depressing thing: months have gone by and DHS seems to simply be reveling in the fact that what it does at the border can be a black box, and it doesn't think it needs to answer to anyone. All of the attempts to find out about DHS's policies and how and why it treats people (especially American citizens) this way have resulted in dead ends. Even the few attempts by Congress to find out what's happening have gone nowhere.

The episode is actually quite depressing, because it appears that DHS has learned that as long as it keeps its collective mouths shut and with what appears to be no oversight, no one can find out about its policies or activities, and that allows it to act with impunity, to attack and humiliate people, to violate their rights, to leave people with lasting mental scars, often requiring therapy, and to never have to answer for any of it. As Trevor Timm, at the Freedom of the Press Foundation, notes, the number of stories of DHS using this process to intimidate American journalists is positively scary -- but at least journalists have an outlet for speaking out about it. An unknown number of others face equal or possibly worth treatment and there's absolutely no recourse at all.

Yes, some will say, that there are people out there who seek to attack the US. And, as such, Homeland Security's Customs and Border Patrol (CBP) officers have a big responsibility. But abusing that authority to create such a horrific results at the border clearly does more harm than good. On The Media is still asking people to use their "Shed Light on DHS tool" to demand Congress do something about this, and we highly encourage you to make use of it. It makes it easy to call your representative and raise these issues with them. If enough people call, perhaps Congress will finally stop abdicating its responsibility and start looking into DHS' abusive practices at the border. To make it even easier, we'll embed the tool below. Go test it out.

from the the-scandal-expands dept

The scandal around New Zealand law enforcement's illegal activities in helping the US government raid Kim Dotcom's house and file criminal charges against him keeps expanding. The raid on the house has already been declared illegal by the NZ High Court. Then there was the issue of the local equivalent of the NSA, the GCSB, illegally spying on Dotcom for the US, despite rules that forbid GCSB from spying on New Zealand residents. It seems to be getting even worse.

A few days ago, it was revealed that a document, which was illegally withheld from an earlier freedom of information request, showed that a senior New Zealand Customs official named Greg Davis, told staffers that it would "buy you many brownie points" if they shared info about Kim Dotcom with the US FBI -- despite not being allowed to share info like this.

At least one of the people who received the email noted that people should "seek legal advice" before handing over such information, but it's unclear if anyone actually did that.

Now, as concerned members of the New Zealand Parliament are wondering why top customs officials were interested in handing over private information on New Zealand residents to a foreign country's intelligence agencies for "brownie points," New Zealand's Customs officials have announced that they will not answer questions about it, in an effort to -- get this -- "protect the privacy" of the guy who sent that email, Greg Davis.

Davis, by the way, was running New Zealand Custom's "Integrated Targeting Operations Centre," which collects a ton of information on travelers. Many in New Zealand had already complained about the possibility of this group to abuse its powers, but at nearly the same time Davis was proving their point, New Zealand Prime Minister John Key was defending the center with that old liar's trope: "anyone who is innocent has nothing to fear." He should have added "unless US officials are interested in you -- then you're fucked."

from the it-never-ends dept

Update: Just as we published this, news came in that this amendment was rebuffed, but the point remains: Congress keeps trying to sneak in little favors to Hollywood every chance it gets.

Congress continues to show that it learned absolutely nothing from the SOPA/PIPA mess earlier this year. While we've been focused on the problematic IPAA bill in the House, which would create a high level IP Enforcement "deputy assistant" within the Commerce Department, over in the Senate, Debbie Stabenow is looking to create another such role in the Treasury Department. We just mentioned an effort by the Senate Finance Committee to actually make the Special 301 report useful by having it go after internet censorship... but according to Politico's Morning Tech, Senator Stabenow has very quietly introduced an amendment to that effort, which would increase the role of the Treasury Department as Hollywood's private police force:

A tweak by Sen. Debbie Stabenow made available last night would add to the trade bill her own measure, the Protect American Innovation Act. Among other things, the amendment would establish the position of "director of Intellectual Property Rights Enforcement" at Treasury, while boosting the ability of Customs and ICE to find and seize infringing materials entering the country or to be exported.

Stabenow actually introduced this "Protect American Innovation Act" last year, in the midst of the fight over SOPA and PIPA, and very few people noticed, since all of the attention was on those two bills. But if you look at the details, it's just more of the same. It would increase the Treasury Department's role in intellectual property enforcement, first by establishing a "director of intellectual property rights enforcement" withing the Treasury. That position would be tasked with working closely with ICE -- and ICE would get its own new "coordinator of intellectual property enforcement." You remember ICE. Those are the folks famous for censoring websites based on no evidence, just the RIAA's say-so. Oh, and remember Dajaz1? That's one of those sites that ICE erroneously censored. One of that site's admins lives in Michigan -- Stabenow's home state. But, apparently, Stabenow would rather carry water for Hollywood than protect her own constituents from gross overreach by the US government.

Given how badly ICE screwed up that job, it's amazing that Stabenow wants to increase their authority. But that's what's happening. The bill defines "piracy" as "activities related to production of or trafficking in unauthorized copies or phonorecords of works protected under title 17, United States Code, or related laws." And we thought "piracy" was defined as "an act of criminal violence at sea." But, notice just how broad that text is there. Any production of "unauthorized copies" of works protected under the copyright act. Yeah, if you make a copy... the Treasury Department and ICE might be able to target you.

The bill also says that Treasury/ICE/Customs should get training in new technology for "detecting and identifying, at ports of entry... pirated goods." Given how broad this is, you could read this to mean that your phones, MP3 players and laptops may get scanned at the border for all of the music and movies you have. There was talk of such things in ACTA, but they were rejected when people spoke up -- and now they're back in a bill from Senator Debbie Stabenow who apparently slept through what happened in response to SOPA/PIPA and ACTA.

The bill also gives law enforcement within Treasury/ICE/Customs pretty broad powers, including issuing fines for importing "pirated" goods, and says that such fines "may not be mitigated" unless ordered by a court or "pursuant to regulations issued by the Commissioner." And such fines "may not be dismissed or vacated." In other words, if they catch you with pirated works, they may be required to issue fines. In fact, it says that the mitigation, dismissal or vacation of such fines can only happen for "extraordinary cases." Having a few unauthorized songs on your iPhone isn't extraordinary.

But wait... there's more. While the IPAA, as discussed, would increase US diplomatic efforts to push for IP enforcement abroad... and so would this bill, though in a different area. Rather than IP attaches, now ICE and Customs would be tasked with spreading Hollywood-style maximalism to other countries by increasing staffing to provide training and assistance to other countries in "detecting" such "pirated goods."

There are also a ton of small changes to copyright law, which would take quite a few hours to dig in and see what they actually do. As is typical of these kinds of bills, they don't tell you what the bill would actually now say -- they just say things like "strike from [phrase y] to [phrase x] and insert [random string of terms]." And, sometimes (including here), even these phrases then point you to other laws that you have to piece together as well. You have to sit down, pull up the original, figure out what's being taken out, what's being inserted and what it all means. There appear to be about a dozen such changes which we'll have to go through later, but it wouldn't surprise me to find more trouble in there.

For example, just a quick look at Section 143 of this bill might appear like a minor textual change. It says you have to add the following to a different bill (19 U.S.C. 1595a(c)(2)). What's that? Oh, it's the rules for the government forfeiting your property. And what's the text?

‘(G) it is a technology, product, service, device, component, or part thereof the importation of which is prohibited under section 1201(a)(2) of title 17, United States Code.’.

Okay piece that back into the bill above, and you see that what it's actually doing is increasing the types of things that can be forfeited by ICE and Customs. But how so? Well, you have to jump over to section 1201(a) of Title 17, which is the anti-circumvention provision of the DMCA.

When you sit back and parse it all together, you realize that they're now allowing ICE/Customs to forfeit any circumvention device. Considering how many "circumvention devices" you already own without realizing it, you should be concerned.

Either way, I'm sure there's more in there, but this is just a quick read, because, again, this effort was announced yesterday for markup today. And, yes, while Stabenow released this bill last year, it got little attention because no one thought it was going anywhere. To suddenly jump the line and try to attach it to a separate, important bill, shows the same sort of attempt to sneak through laws for Hollywood without public scrutiny.

from the um,-no dept

Richard Clarke, the former cybersecurity czar in the White House -- and a huge, huge, huge proponent of pushing for greater legislation for spying on Americans under the guise of "cybersecurity" (it used to be "cyberwar" but that term was so laughable, it's been downgraded to "cybersecurity) -- has written one of the most ridiculous defenses of new internet spying proposals, claiming that Chinese hackers are stealing all our intellectual property by hacking into computers online. He has no evidence of this. He tells apocryphal stories of Chinese hackers somehow getting all the data from a "$1 billion research program copied by hackers in one night." The whole thing is fear-mongering in the extreme, using the specter of evil "Chinese pirates" hacking computers and stealing important US intellectual property. That's wrong for a variety of reasons that we've discussed multiple times. But where it gets downright silly is in his assertion that (1) the US could magically "stop" these mythical hackers from "stealing" data, and (2) that Homeland Security already has the authority to spy on all internet traffic as it comes over the border:

If given the proper authorization, the United States government could stop files in the process of being stolen from getting to the Chinese hackers. If government agencies were authorized to create a major program to grab stolen data leaving the country, they could drastically reduce today’s wholesale theft of American corporate secrets.

[....]

Under Customs authority, the Department of Homeland Security could inspect what enters and exits the United States in cyberspace. Customs already looks online for child pornography crossing our virtual borders. And under the Intelligence Act, the president could issue a finding that would authorize agencies to scan Internet traffic outside the United States and seize sensitive files stolen from within our borders.

And this does not have to endanger citizens’ privacy rights. Indeed, Mr. Obama could build in protections like appointing an empowered privacy advocate who could stop abuses or any activity that went beyond halting the theft of important files.

Almost everything stated above is ridiculous. As law professor James Grimmelman points out, with this article "Richard Clarke disqualifies himself from participating in any serious discussion of cybersecurity."

Indeed. It's scary to think that Clarke was ever seen as an expert in cybersecurity. He seems to be under the assumption that the internet really is a series of tubes, in which customs agents can simply stop all that data at the border and inspect it. And the idea that appointing a single "privacy advocate" would magically stop abuses? You'd think he just stepped off the turnip truck, rather than having spent many years in government where privacy was regularly abused, despite much more significant safeguards in place. Who does he think he's kidding?

Will we ever have people driving policy discussions on regulating the internet who actually understand the internet?

from the this-again dept

The federal government seems to have a real blindness for the fact that companies given government-granted monopoly privileges in the form of trademarks, copyrights and patents might seek to abuse those rights beyond what is reasonably allowed. Instead, they seem to assume that private companies will always properly limit any efforts to use those laws against true violators. Of course, we know that's not true, and that such monopoly holders regularly abuse the laws to block or shut down competitive activity or activity that the IP holder just doesn't like. And yet, the government continues to ignore that this happens. Last year, the White House put forth a bunch of suggested changes to IP law, some of which showed up in SOPA.

One of the ones that didn't show up in SOPA has now made its way into a new legislative proposal, H.R. 4216: Foreign Counterfeit Prevention Act, introduced by Reps. Ted Poe and Steve Chabot. The text of the bill seems simple enough. It changes 18 USC 1905, which currently forbids federal officials from revealing to private parties' information that they come across during investigations. The new bill seeks to make an exception to that: allowing Homeland Security/Customs & Border Patrol agents to share pre-seizure info or products with trademark and copyright holders.

Now, on its face, this might make sense. It's a way for CBP officials to ask copyright and trademark holders if their rights are being abused by potentially infringing products. But, as we noted when the White House first asked for this law, this hasn't always worked out so well in the past, in part because copyright and trademark holders are often not particularly truthful when asked if they infringe -- and they rarely, if ever, give any thought to fair use or other legitimate uses of their copyrights and trademarks. In fact, one of the reasons why the federal government screwed up so badly in seizing Dajaz1 was because it relied on bad claims by the RIAA, who insisted that works that were not infringing were infringing. Organizations like the RIAA have little incentive to get these things right. And this bill encourages greater coordination with those private parties?

The simple fact is that infringement is determined not by the copyright or trademark holder, but through a court process and adversarial hearing. Having Homeland Security sharing more info with private companies seems like a situation that is ripe for abuse. We've already seen how Homeland Security sometimes appears to act as the the private police force of certain private companies. Are we sure that we really want to create a situation that encourages more such activities?

from the so-sorry,-too-bad dept

I am actually writing this post sitting in a French airport, getting ready to board my flight back to the US... but I think I'll hang onto it and post once I'm back in town. That's because it's about some UK tourists who were taking a little vacation to the US... until Homeland Security refused them entrance, because one of them had joked on Twitter about digging up the grave of Marilyn Monroe and "destroying" America (by which he meant partying). Apparently, DHS has figured out how to monitor Twitter... but hasn't figured out what a sense of humor is. (And yes, I made it home and through customs without any trouble).

from the abandoned-great-white-north dept

A few years ago, when I was in Toronto, I remember being shocked when a friend there told me how difficult it was to get any sort of serious e-commerce there. Because of problems with customs and other issues, many of the big e-commerce players wouldn't ship to Canada, or made it quite difficult. This particular friend would order stuff to be shipped to a relative in the States, to be "delivered" later. It appears that Zappos has had enough. Rob Hyndman points us to the somewhat surprising news that Zappos has bailed out on Canada, saying it will no longer ship there, due to issues with customs:

We have made the difficult decision to shut down the canada.zappos.com site and stop shipping to Canada. One of our core values is to "deliver WOW through service". That means the best selection of brands and products that can meet just about every individualís needs as well as fast, free shipping and free returns, all at competitive pricing. Our Canadian customers know that we have not lived up to these service levels.

Product selection on canada.zappos.com is limited due to distribution agreements with the brands we sell in the United States. In addition, we have struggled with general uncertainty and unpredictability of delivering orders to our Canadian customers given customs and other logistics constraints.

While this is just one e-commerce outlet (albeit a subsidiary of Amazon.com), combined with what I'd heard in the past, it really does seem like a pretty major issue for Canada. If people there can't reliably order e-commerce products, then Canadians are missing out on quite a big part of what the internet enables. You would think there would be a more concerted effort to make things right, rather than spending so much time doing things like passing laws that Hollywood wants, which will limit consumers even more.

from the feeling-safer? dept

We're still waiting for a good explanation of why Homeland Security's Immigration and Customs Enforcement group is involved in internet copyright issues that have nothing to do with either immigration or customs enforcement, but it appears that those sharp border patrol folks are really doing their job protecting Americans from... chocolate toy eggs. Tim Good alerted us to this story of how the US Border Patrol did a random search on a Canadian woman's car as she crossed the border into Minnesota, and told her she had illegal contraband in her car in the form of a Kinder Surprise Egg. I'd never heard of this before, but apparently it's a confection with a chocolate shell and a toy inside.

According to US border patrol, they told her that it was a choking hazard and on the list of "prohibited items" in the US, though, as the folks at Reason (reasonably) point out:

A gander at the image... suggests you'd have to be awfully intent on getting that chocolate into your system not to notice the huge, bright yellow plastic capsule inside.

Take a look for yourself:

Of course, that's not the end of the story, either. After leaving the chocolate egg and toy to the US border patrol agents, and figuring it was just a nuisance, the woman was somewhat surprised to receive a letter a week later, asking her if she was planning to come back to retrieve the egg. They noted if she did not, and she wanted to fight the seizure of the egg, she would need to pay the US government $250 in "storage costs" for the egg.